JERIPOTHULA (Migration)

[2019] AATA 1902

JERIPOTHULA (Migration) [2019] AATA 1902 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr OHM KARUN JERIPOTHULA

CASE NUMBER:  1622378

HOME AFFAIRS REFERENCE(S):           BCC2016/3186008

MEMBER:Mr S Norman

DATE:28 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 28 March 2019 at 11:55am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – lack of academic progress – no longer fulfilling purpose of visa – education and work opportunities available in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 338
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(b) of the Act as the applicant had been found to have breached condition 8516 (discussed below). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 21 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted by telephone. The applicant had returned to his home in India on 24 February 2019 after the ‘sudden death of a family member’.[1] However, the applicant was in the migration zone at the time of lodgement of the Tribunal review application, and the Tribunal proceeded to hear the case (s.338(3) of the Act).

   [1] Tribunal – folio 31.

4. The applicant also said he had departed Australia while holding a BVE and he understood that prevented him from returning to Australia. He requested the Tribunal (words to the effect) allow him to return to Australia so that he could present his case in person. However, the Tribunal was unable to assist the applicant with this request.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires that the visa holder must continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa. In this case, the relevant criteria is set out in cl.573.223(1A) & cl.572.231.

9. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 14 January 2015 (expiry date 10 April 2017). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 12 December 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he was not enrolled in a Bachelors degree or Masters degree and he was therefore not enrolled in a course of study that is a principle course of a type specified for the Subclass 573 Student visa. Further, that it appeared he had not therefore continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A). Also that it appeared he may not have continued to be a person who would satisfy the primary criteria for the grant of the visa and therefore had not complied with condition 8516. In the circumstances, his visa may be cancelled pursuant to s.116(1)(b) of the Act.

10. In the response to the NOICC dated 13 December 2016, the applicant did not dispute there were grounds for cancelling the visa. At the Tribunal hearing, the applicant appeared to believe there were not grounds to cancel his Student visa. Prior to the hearing, he had lodged:

    ·     A COE from Curtin University of Technology for a Masters of Science (Project Management) degree – course start date 25/02/2015 – course end date 10/02/2017[2]

    ·     Though not referred to on PRISMS, by letter dated 3 January 2019 from Curtin University, it was stated that in 2015, the applicant had attended subjects for the Master of Science (Project Management) degree and passed one subject and failed two[3]

    ·     A COE from Holmes Institute P/L for a Master of Professional Accounting degree – course start date 26/08/2015 – course end date 31/12/2016

    ·Though again not referred to in PRISMS, at hearing the applicant conceded that he had not continued with this course.

    ·     The applicant had also lodged evidence of being enrolled in Diploma level courses in Australia.

    [2] Tribunal – folio 59.

    [3] Tribunal – folio 56.

11. In the Tribunal’s experience, there may be occasions when the information contained in PRISMS is not completely accurate. For the purpose of this decision, I propose to accept as accurate the above evidence lodged by the applicant.

12. That being said, condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

13. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

14. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, masters degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 14/075. However, and based on the evidence before the Tribunal, I do not accept the applicant continued to be an eligible higher degree student.

15. Therefore to satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application.

16. However, and as stated at hearing, the evidence before the Tribunal included that the applicant had failed to maintain his enrolment in a registered course of study from (around) 10 November 2015, that was a principle course of a type specified for the Subclass 573 Student visa, and up to the date the NOICC was issued (around 13 months later).  At hearing, the applicant also conceded that he had failed to complete any course at the Masters level in Australia.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act, exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

18. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

19. Regarding the purpose of the applicant’s travel to and stay in Australia, the applicant said they wished to study a Masters of Project Management in Australia. However, and as set out below, the applicant conceded that his ‘education profile’ in Australia had not been ‘consistent’. Be that as it may, the Tribunal proposes to accept the applicant initially travelled to Australia for the purposes of study.

20. Next, regarding the extent of compliance with visa conditions, the applicant failed to comply with condition 8516 which was attached to his Student visa. It was because he failed to maintain his enrolment in a course of study that is a principle course of a type specified for the Subclass 573 Student Visa. The Tribunal notes this may give rise to other condition breaches (ie, 8202(2)(a)).

21. Regarding the degree of hardship that may be caused to the applicant or his family if his Student visa is cancelled, in his response to the NOICC the applicant said he was ‘in the middle of his course[4] of study’; the course commenced 16 May 2016 and was due to be completed on 6 January 2017 (though the Tribunal understands the course was not completed); and that he would ‘produce all certificates’ upon return to Australia (the applicant has not returned to Australia but had subsequently lodged documents which are referred to below).

    [4] Department – folio 39.

22. The applicant had also said in writing that his family had a “good lifestyle in India”. But as noted above, he had also conceded that his “education profile in Australia has not been consistent”. He also said that if his Student visa is not reinstated “his self-confidence would be shattered and his family’s investment would be wasted”. He also referred to the sudden death of a family member in India.

23. Shortly prior to the hearing, the applicant advised the Tribunal that his family had suffered the death of a relative and he feared that if his family (with whom he was then living) found out about his Student visa being cancelled, this would put further pressure (depression and stress) on him and them. The applicant had also said that he wanted to continue his education in Australia and that in the two years he had been waiting for his case to be heard by the Tribunal, he had ‘lost time and career goals’.  In undated submissions to the Tribunal,[5] the applicant referred to the “excellent education opportunities offered by Australian academic institutions”.

    [5] Tribunal – from folio 64.

24. When discussed at hearing, the applicant said his father and one brother worked in the Indian Military service and another brother worked in a computer shop. He also said that prior to his travel to Australia, he had worked in a bank as a Customer Service Officer. The applicant also advised that a cousin had passed away and he had returned home for her funeral (in February 2019). Though not mentioned prior to the hearing, he also said that when his grandmother had passed away (in September 2018), he had not returned to his home in India. He also advised that his father and brother had financially supported his travel to and study in Australia. He also said his father told him that with qualifications from Australia he could obtain better work in India, and repay the monies he owed (to the father and brother). However, when pressed about his work in Australia later in the hearing, the Tribunal understands the applicant eventually said he (possibly) remitted approximately AUD$2,000 per month to his parents in India, while working in Australia (consistently between early 2015 and February 2019), for only 20 hours per week.

25. At hearing the Tribunal noted that country information it had considered indicated that India has one of the fastest growing large economies in the world.[6] Also, that regarding education the country information advised:

    India’s higher education system stands third in size in the world after the US and China with nearly 26 million students in over 45,000 institutions in the country. In the last decade the country has witnessed a particularly high growth rate in student enrolment at a CAGR of 10.8% and institutions at 9%. …  

    Indian higher education has been progressing at a fast pace adding over 20,000 colleges and about 8 million students between the ten year period 2001 - 2011. As of 2011, Indian higher education system is spread over 42 central universities, 275 state universities, 130 deemed universities and 90 private universities. … [7]

    [6] See DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, ‘Economic Overview’, p.8.

    [7] ‘HIGHER EDUCATION IN INDIA - Access, Equity, Quality’,  Obadya Ray Shaguri - EAN World Congress Scholar 2013, accessed 27 February 2019.

26. When discussed, the applicant did not believe he could obtain better education in India, or that he would be able to secure better work. Be that as it may, and though the Tribunal accepts the applicant’s claim that the quality of education in Australia may be better than may be available to him in India, and that he may be able to secure better work in India if he obtained an Australian qualification, the country information relating to tertiary education and work opportunities in India, and the evidence of his own prior tertiary education in India (‘Provisional Certificate’, Jawaharal Nehru Technological, University Hyderabad[8]) has satisfied the Tribunal the applicant could obtain relevant education and work opportunities commensurate with his skills, on return to India.

    [8] Tribunal – folio 61.

27. However, the Tribunal does accept that if the applicant’s visa is cancelled his family and he, would be disappointed and upset. Though the Tribunal also understands that any alleged (presumably temporary) depression this may cause the applicant or his family, might be mitigated by attendance at a relevant health care professional in India (though at hearing, the applicant did not claim to have attended for any such care in Australia). The Tribunal also accepts that his family’s claimed investment in his education may ‘be wasted’; though it also appears he could have repaid at least some of this investment with his remittances to his family in India.

28. Regarding the circumstances in which the ground of cancellation arose, in undated submissions to the Tribunal[9] the applicant referred inter alia to his academic plans and “progressive qualification path of Masters degree”. He also said he commenced at Curtin University in a Masters in Project Management. He said he completed some units and “failed a couple of subjects in Project Management”. He was then advised to change education providers to Holmes College (Master of Professional Accounting). However, he again faced problems keeping up with the content of the course as his background was not in accounting and he discontinued this course soon after. He then spoke with his family after which he decided to pursue a Diploma to acquire a basic knowledge in the field of business. He said he had now completed a Diploma of Business and felt “more confident”. He now wants to pursue a Masters in Project Management. He believes he will be able to secure better work in India with this degree.

    [9] Tribunal – from folio 64.

29. He then said that he had attempted to obtain admission to a Masters in Project Management but due to his visa status he was rejected. An education consultant then advised him to wait until his visa status “get into normal”. He said he did not wish to obtain permanent residence in Australia and as his parents are “growing old” he wished to return to India. The applicant also lodged:

    ·     a Board of Secondary Education from India relating to the applicant’s Secondary School Certificate (March 2004)[10]

    ·     a Board Intermediate Education from India dated April 2008[11]

    ·     a certificate from a Technical University in Hyderabad India (a Provisional Certificate & a Migration Certificate), dated April 2014[12] and July 2014[13]

    ·     a COE from Curtin University relating to a Master of Professional Accounting - commencing 26 August 2015 / ending 31 December 2016[14]

    ·     an Academic Transcript from Curtin University dated 3 January 2019, indicating that in 2015 the applicant had failed two of three subjects[15]

    ·     a COE from Holmes Institute relating to a Master of Science (Project Management) – commencing 25 February 2017/ending 10 February 2017[16]

    ·     a COE from Nick Hannay P/L for a Diploma of Business - commencing 16 May 2016 / ending 6 January 2017[17]

    ·     a COE from Nick Hannay P/L for a Diploma of Business - commencing  20 February 2017 / ending 16 February 2018[18]

    ·     a letter dated 26 May 2018 from Hannay International College indicating the applicant had completed eight subjects of his Diploma of Business[19] (though at hearing, the applicant said this letter related to the Diploma course he finished on 16 February 2018).

    [10] Tribunal – folio 62.

    [11] Tribunal – folio 62 (reverse side).

    [12] Tribunal – folio 61.

    [13] Tribunal – folio 61 (reverse side). 

    [14] Tribunal – folio 59 (reverse side). 

    [15] Tribunal – folio 56. .

    [16] Tribunal – folio 59.

    [17] Tribunal – folio 58. 

    [18] Tribunal – folio 58 (reverse side).

    [19] Tribunal – folio 57 (reverse side).

30. When discussed at hearing, the applicant conceded that since arriving in Australia in early 2015, he had successfully completed only one course (Diploma of Business, Nick Hannay P/L). That Diploma was for a duration of one year and had been completed on 16 February 2018. The applicant had not studied any course since that time (prior to his return to India in February 2019 – though he said this was due to him not being allowed to enrol until his visa status had been remedied). As he confirmed at hearing, prior to this his “education profile in Australia has not been consistent”. The applicant also had first breached his visa conditions some ten months after arriving in Australia. The Tribunal is satisfied that this supports a conclusion the applicant does not now genuinely intend to pursue higher education in Australia.

31. At hearing, the Tribunal put to the now 30 year old applicant, that his future may benefit by returning to India, where he would have the support and guidance of his family. The applicant did not agree. However, after considering all the accepted evidence, the Tribunal believes the applicant may benefit by returning to India, where he would have the support and guidance of his family.

32. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. There is no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. Next, the Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. Further, after considering all the accepted evidence herein, the Tribunal is not satisfied there is a compelling need for the applicant to travel to or remain in Australia.

33. Next, if the applicant’s visa is cancelled he would become an unlawful noncitizen. However, given he had already returned to India, he is not subject to being detained under s.189 or removed under s.198 of the Act.

34. The Tribunal also notes that if the applicant’s Student visa is cancelled he would be subject to s.48 of the Act, and he would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation (being from 21 December 2016).  

1. Put briefly, the Tribunal accepts the now 30 year old applicant may wish to return to Australia. However, given his failure to continue to meet the conditions attached to his visa reasonably shortly after arriving in Australia, given his lack of progress regarding his education in Australia (possibly partially related to his being uncertain as to what to pursue in Australia and also due to his claimed -at least initial- inability to meet Australian educational standards), given the reasonable education and work opportunities that would be available to the applicant in India, and where he could benefit from the ongoing guidance and support of his family, the Tribunal is satisfied the applicant’s Student visa should be cancelled. 

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. 

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Mr S Norman
   Member